WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Amalgamated Metal Workers and Shipwrights Union of Western Australia and Others, and State Energy Commission of Western Australia. No. 1236 of 1990. BEFORE THE PRESIDENT, P.J. SHARKEY Esq. 17th day of August 1990. Reasons for Decision. THE PRESIDENT: This was an application by the Amalgamated Metal Workers and Shipwrights Union of Western Australia and others for a stay of the proceedings before Commissioner Beech in matter CR84 of 1990. The grounds on which the application were made are as follows:— (1) The applicant has lodged an appeal (No. 1225 of 1990) against the decision of Commissioner A.R. Beech delivered on 11 July 1990 in Matter No. CR84/1990. (2) The decision is in respect of preliminary points only which go to the matter of whether the application by the SECWA in No. CR84/ 1990 is valid. (3) The applicant seeks a stay of proceedings in respect of Matter No. CR84/90 pending the above outcome of the appeal to above. (4) The applicant indicated to the President that serious issues of law are raised by the appeal and that the balance of convenience lies with the applicant and the public interest in respect to this application for a stay of proceedings. A notice of answer and counter proposal was filed by the respondent, the State Energy Commission of Western Australia (hereinafter referred to as "SECWA"), the particulars of which were as follows:— SECWA objects to the application on the basis that the balance of convenience favours the respondent (SECWA) in this matter. The proceedings sought to be stayed by the applicants, CR84 of 1990, relate to an application by SECWA seeking the cancellation of existing site allowance orders providing for a site allowance of $1.20 an hour to be paid to employees engaged on construction at the Mungarra power station near Geraldton and the substitution of those orders with a new order providing for a site allowance of 40 cents per hour. Preliminary points relating to the provisions of section 40 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as "the Act") and the principle of res judicata were raised before the Commission at first instance who determined those matters and issued reasons for decision in relation to the preliminary points on 11 July 1990. The appeal lodged against that decision is appeal 1225 of 1990. In applications made pursuant to section 49(11) of the Act there is an onus on the applicant to establish that there is a serious issue to be tried on appeal and that, on the balance of probabilities, the balance of convenience favours the applicant. Ms Boots, appearing on behalf of the applicants, submitted that the grounds of appeal show that there are serious issues of law to be tried regarding the applicability of the principle of res judicata and the correct interpretation of section 40 of the Act. She also submitted that it was in the public interest to have these questions of law determined. As to the balance of convenience I was referred to RRIAv. AMWSU 69 WAIG 1709 at 1710whereO'Dea P. said:— Repeating that the balance of convenience involves an evaluation by me of the relative position of the parties in terms of their convenience, I find myself wholly unconvinced that the balance of convenience favours a stay in this case, notwithstanding there is a serious issue to be tried. It was submitted by Ms Boots that the balance of convenience in this matter was different from most stay applications in that this application sought to stay proceedings pending the outcome of an appeal on a preliminary point, whereas in most stay applications the application was to stay the operation of an order pending an appeal. Applications such as this, it was submitted, were not without precedent, and I was referred to RRIA v. AMWSU 69 WAIG 7 and Springdale Comfort Pty Ltd v. Plumbers and Gasfitters Employees Union of Australia, WA Branch and Others. It was submitted that the balance of convenience meant that the applicant unions and the Commission and SECWA should not be put to the trouble and expense of 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3089 ranning a two day hearing which would not be necessary if the appeal is successful. Further that if the appeal is unsuccessful the respondent, SECWA is not disadvantaged as the matter would then proceed and a decision made. As to the recovery of moneys, it was submitted for the applicants that I should not be impressed by submissions made by SECWA in respect of the convenience lying with them, because of the difficulties that arise in recovering moneys from employees. It was submitted that the subject of recovery of money is an issue between the parties in relation to the restructuring exercise. In reply, Mr Bibby, on behalf of SECWA, objected to the granting of the application on the basis that the balance of convenience favoured the respondent and not the applicants. It was accepted by the respondent, however, that there was a serious issue to be tried. The balance of convenience favours the respondent, it was submitted, for the following reasons. Firstly, that it was unlikely that the appeal would be heard before 14 August 1990, the date on which the remainder of matter CR84 of 1990 will be heard before the Commission at first instance. That would mean that if the stay was granted SECWA would have to pay out moneys which would be difficult and costly to recover. Secondly, it was submitted that SECWA had a statutory responsibility under the SEC Act 1979 to ensure that economical and effective measures are taken to establish facilities for the generation of energy. SECWA by application CR84 of 1990, is therefore attempting to ensure that no unnecessary expenses are incurred in building the Mungarra power station. The construction and workshop branch of SECWA is responsible for the building site at Mungarra and it is important for that branch to remain competitive with private contractors and therefore carry out the responsibilities that are incumbent upon it pursuant to the SEC Act. Thirdly, it was submitted that the granting of a stay of proceedings would be contrary to section 6(c) of the Act as the matter was filed in the Commission in February 1990, and section 6(c) of the Act requires that matters are resolved with a maximum of expedition and a minimum of legal form and technicality. Fourthly, and finally, it was submitted by the respondent that if the applicants were successful, then the application at first instance could be neutralised. The reason for this, it was submitted, was that the construction phase at Mungarra is due for completion in early October. A hearing before the Full Bench, it was submitted, would take the finalisation of the matter beyond the completion of the project and would therefore render a hearing before the Commission worthless. The delay would therefore deny the respondent the fruits of its litigation. There is a serious matter to be tried, because of the nature of the point involved. However, it will, I think, be uncommon for a preliminary matter on an appeal against a decision or a finding to be permitted to delay the proper determination of the matter. From the point of view of the balance of convenience, it would cause greater inconvenience to the respondent. The principles in these matters are well established. It is clear, on the submissions made to me. that there was a serious issue to be tried. Further, however, it is difficult, in my opinion, to say, unless strongly persuaded, that there should be a stay of a decision which was itself a "finding" as defined in section 7 of the Act. In my opinion, the balance of convenience would not often favour a stay upon an application under section 49(11) of the Act relating to a finding. I say that because the balance of convenience within the objects of the Act will more often favour the convenience of the party who wishes a matter to be finalised by arbitration [see WA Newspapers v. PKIU (No. 1155 of 1990) (unreported)]. That will not always be so and each matter must be viewed on its own facts. However, the applicant, for those reasons, in this case, has not established that the balance of convenience lies with it. Apperances: Ms J. Boots (of Counsel) on behalf of the applicants. Mr S. Bibby on behalf of the respondent.